The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “In the exercise of its appellate jurisdiction, this Court will not decide
nonjurisdictional questions which were not considered and decided by the court from which
the appeal has been taken.” Syllabus Point 1,
Mowery v. Hitt, 155 W. Va. 103, 181 S.E.2d
334 (1971).
2. “This Court may, on appeal, affirm the judgment of the lower court
when it appears that such judgment is correct on any legal ground disclosed by the record,
regardless of the ground, reason or theory assigned by the lower court as the basis for its
judgment.” Syllabus Point 3,
Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965).
Per Curiam:
This is an appeal by Enterprise Rent A Car of Kentucky and Empire Fire and
Marine Insurance Company from a March 19, 2008, order of the Circuit Court of Kanawha
County that granted a declaratory judgment on behalf of the appellee, Wang-Yu Lin. The
court found that a supplemental liability insurance policy purchased by Mr. Lin from Empire
Fire and Marine Insurance Company, at the time Mr. Lin rented a vehicle from Enterprise
Rent A Car of Kentucky, provides coverage to Mr. Lin for injuries he suffered in an accident
involving the rental vehicle. For the reasons provided below, we affirm the ruling of the
circuit court.
I.
FACTS
The appellee, Wang-Yu Lin, a student at Salem International University, leased
a vehicle from Appellant Enterprise Rent A Car of Kentucky (“Enterprise”) at its Clarksburg,
West Virginia office. A copy of the rental contract with Enterprise indicates that Mr. Lin did
not request to add any additional authorized drivers to the contract.
(See footnote 1) At the time of the rental,
Mr. Lin purchased a $1,000,000 Supplemental Liability Policy issued by Appellant Empire
Fire and Marine Insurance Company (“Empire”). Specifically, Mr. Lin signed the portion
of the contract indicating that “RENTER ACCEPTS OPTIONAL SUPPLEMENTAL
LIABILITY PROTECTION (SLP) AT FEE SHOWN IN COLUMN TO RIGHT. SEE
NOTICE BELOW AND PAGE 3, PARAGRAPH 17.” At paragraph 17 of page 3 of the 4
page rental agreement, there is a summary of the supplemental policy benefits and
exclusions.
(See footnote 2) Mr. Lin was not provided a copy of the supplemental policy.
During the trip in the rental vehicle, Mr. Lin permitted a passenger, Shin Yi
Lin, to drive the vehicle. (See footnote 3) Shortly thereafter, the vehicle was involved in a one-car accident
wherein Mr. Lin, a passenger in the vehicle, sustained a serious head injury and subsequently
incurred approximately $300,000 in medical expenses.
Mr. Lin presented a claim to Empire for coverage under the supplemental
policy. (See footnote 4) Empire denied Mr. Lin's claim for coverage based on the fact that Shin Yi Lin who
was driving the vehicle at the time of the accident was not named as an additional authorized
driver on the Enterprise rental contract. As a second basis for denial, Empire asserted that
Mr. Lin cannot make a claim on an insurance policy which he purchased based on an insured
exclusion.
Thereafter, Mr. Lin filed a declaratory judgment action in the Circuit Court of
Kanawha County seeking a declaration of coverage under the supplemental policy. The
parties filed cross motions for summary judgment. By order dated March 19, 2008, the
circuit court granted summary judgment in favor of Mr. Lin finding that coverage is provided
to him. Specifically, the circuit court found that the omnibus insurance statute, W. Va. Code
§ 33-6-31(a), affords coverage to any person using a vehicle with the named insured's
permission, and, under the instant facts, Shin Yi Lin was a permissive user inasmuch as Mr.
Lin permitted her to drive the vehicle. Also, the court found that Empire cannot rely on the
insured exclusion because the exclusion must specifically designate the name of the excluded
driver to be effective under W. Va. Code § 33-6-31(a), and the restrictive endorsement must
be attached to the policy. (See footnote 5) Enterprise and Empire now appeal the circuit court's March 19,
2008, order.
II.
STANDARD OF REVIEW
Our review of the circuit court's summary judgment order is
de novo. Syllabus
Point 1,
Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
III.
DISCUSSION
The sole issue before this Court is whether the circuit court erred in declaring
that Mr. Lin is covered under the supplemental policy at issue based upon the record and the
legal arguments before it. As noted above, the circuit court found that the omnibus insurance
statute, W. Va. Code § 33-6-31(a), prevents the appellants from denying coverage based on
the fact that Shin Yi Lin was not an additional authorized driver under the rental contract at
the time of the automobile accident. This Court believes that the applicability of W. Va.
Code § 33-6-31(a) to automobile rental insurance is questionable in light of the Legislature's
enactment of W. Va. Code § 33-12-32 (2004), which pertains to limited licenses for rental
companies. Specifically, W. Va. Code § 33-12-32(h)(4)(B) provides:
(4) The limited licensee to sell automobile rental coverage may offer or sell
insurance only in connection with and incidental to the rental of vehicles,
whether at the rental office or by preselection of coverage in a master,
corporate, group rental or individual agreements in any of the following
general categories . . . .
(B) Liability insurance (which may include uninsured and underinsured
motorist coverage whether offered separately or in combination with other
liability insurance) that provides coverage, as applicable, to renters and other
authorized drivers of rental vehicles for liability arising from the operation of
the rental vehicle[.]
Mr. Lin now argues, however, and this Court agrees, that the appellants have waived their
argument relating to W. Va. Code § 33-12-32, by failing to raise it before the circuit court
and by raising it for the first time on appeal. (See footnote 6)
The appellants reply that they are not changing their legal theory or asserting
a new argument on appeal. They also contend that both Mr. Lin in his summary judgment
pleading and the circuit court in its summary judgment order cited W. Va. Code § 33-12-32
for the proposition that the Enterprise employee who sold the policy to Mr. Lin had not been
given the proper training with respect to the sale of the liability insurance policy. The
appellants conclude that Mr. Lin cannot rely on a certain provision in W. Va. Code § 33-12-
32 to support his claims while disregarding other portions of the statute that do not support
his claims. Finally, the appellants assert that to the extent they are raising a new issue, the
record is sufficiently developed for this Court to decide the issue on appeal.
After a careful review of this issue, this Court concludes that the appellants
have waived their argument based on W. Va. Code § 33-12-32. The appellants clearly did
not raise this issue in their cross motion for summary judgment below. “In the exercise of
its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were
not considered and decided by the court from which the appeal has been taken.” Syllabus
Point 1, Mowery v. Hitt, 155 W. Va. 103, 181 S.E.2d 334 (1971). The issue of whether an
automobile rental insurance policy is outside the scope of W. Va. Code § 33-6-31(a) due to
the fact that it is regulated by W. Va. Code § 33-12-32 was not raised by the appellants below
nor was it decided by the circuit court. Further, while both Mr. Lin, in his pleading, and the
circuit court, in its order, cite W. Va. Code § 33-12-32, it was not to address the specific
issue now raised by the appellants which is whether W. Va. Code § 33-12-32 applies to rental
vehicle liability insurance instead of W. Va. Code § 33-6-31(a), but rather for the proposition
that the Enterprise employee who sold the supplemental policy to Mr. Lin was not properly
trained. Finally, we reject the appellants' reliance on Whitlow v. Bd. of Educ. of Kanawha
Cty., 190 W. Va. 223, 438 S.E.2d 15 (1993), in support of their assertion that the facts are
sufficiently developed for this Court to decide this issue. In Whitlow, this Court considered
an issue raised for the first time on appeal where the issue was constitutional in nature and
one of substantial public interest that may recur in the future. The instant case is not
constitutional in nature. Accordingly, because this issue was not raised and decided below,
we decline to address it for the first time on appeal. (See footnote 7)
In sum, the circuit court found that the supplemental policy at issue covered
Mr. Lin's injuries due to the operation of the omnibus insurance statute at W. Va. Code § 33-6-31(a). In so ruling, the circuit court did not have the benefit of the appellants' new
argument, raised for the first time before this Court, that W. Va. Code § 33-12-32(h)(4)(B)
is applicable to the rental insurance policy at issue instead of W. Va. Code § 33-6-31(a).
Because the appellants did not raise this issue below, this Court, consistent with out law,
declines to consider the issue for the first time on appeal. As a result, this Court, having
found no error in the circuit court's ruling below, must affirm the ruling. In doing so,
however, we do not hold that W. Va. Code § 33-6-31(a) is applicable to automobile rental
insurance policies. Rather, we simply affirm the circuit court's decision in the absence of
error properly preserved for this Court's review. This Court previously has held that
This Court may, on appeal, affirm the judgment of the lower court when
it appears that such judgment is correct on any legal ground disclosed by the
record, regardless of the ground, reason or theory assigned by the lower court
as the basis for its judgment.
Syllabus Point 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).
IV.
CONCLUSION
For the foregoing reasons, this Court affirms the March 19, 2008, order of the
Circuit Court of Kanawha County that granted summary judgment on behalf of Mr. Lin.
Affirmed.
Footnote: 1
A summary of the supplemental policy benefits as they appears in the rental
agreement provides:
17. Optional Supplemental Liability Protection.
THE PURCHASE OF SUPPLEMENTAL LIABILITY
PROTECTION IS OPTIONAL AND NOT REQUIRED IN
ORDER TO RENT A VEHICLE.
THIS IS A SUMMARY ONLY AND IS SUBJECT TO ALL
PROVISIONS, LIMITATIONS, EXCEPTIONS AND
EXCLUSIONS OF THE SLP POLICY ISSUED BY EMPIRE FIRE AND MARINE INSURANCE COMPANY.
UPON REQUEST, A COPY OF THE POLICY IS
AVAILABLE FOR REVIEW. SLP MAY PROVIDE A
DUPLICATION OF COVERAGE ALREADY
FURNISHED UNDER A PERSONAL INSURANCE
POLICY, OR SOME OTHER SOURCE. OWNER'S
EMPLOYEES, AGENTS OR ENDORSEES ARE NOT
QUALIFIED TO EVALUATE THE ADEQUACY OF
RENTER'S EXISTING COVERAGE.
SLP BENEFITS:
Optional Supplemental Liability Protection (
SLP) provides
Renter with minimum financial responsibility limits as outlined
in the applicable motor vehicle financial responsibility laws of
the state where Vehicle is operated AND excess insurance
provided by Empire Fire and Marine Insurance Company, which
supplies Renter and AAD(s) with third-party liability protection
with a combined single limit per accident equal to the difference
between the minimum financial responsibility limits set forth
above and $1,000,000 Combined Single Limit per accident.
SLP will respond to third party accident claims that result from
bodily injury, including death, and property damage that arise
from the use or operation of Vehicle as permitted in this
Agreement. The Empire Fire and Marine insurance policy does
not provide coverage for any loss arising from the use or
operation of Vehicle in Mexico. SLP is available for an
additional charge as stipulated on Page 1
.
A summary of exclusions are provided in the rental agreement as follows:
SLP EXCLUSIONS For all exclusions, see the SLP policy issued by Empire Fire
and Marine Insurance Company. Here are a few key
exclusions:
(a) Loss arising out of an accident which occurs while Renter or
AAD(s) is under the influence of alcohol or drugs, or other
substances unless prescribed by a physician;
(b) Loss arising out
of bodily injury or property damage sustained by Renter or
AAD(s) or any relative or family member of Renter or AAD(s)
who resides in the same household;
(c) Loss arising out of the
operation of Vehicle by any driver who is not Renter or AAD(s);
(d) Liability arising out of or benefits payable under any
uninsured or underinsured motorist law, in any state;
(e) Liability arising out of or benefits payable under any first party
benefit law, medical payments, no-fault or any similar law to the
foregoing, in any state;
(f) Bodily injury to an employee or the
spouse, child, parent, brother or sister of that employee, arising
out of and in the course of employment by Renter or AAD(s);
(g) Property damage to property transported or in the care,
custody or control of Renter or AAD(s);
(h) Damage to Vehicle;
(i) Liability arising out of the use of Vehicle, which was
obtained based on false, misleading or fraudulent information;
(j) Loss arising out of the use of Vehicle when such use is
otherwise in violation of the terms and conditions of the
Rental Agreement. (Bold in original).
Footnote: 3
The appellants put forth several additional arguments in support of their appeal. For
example, the appellants assert that Shin Yi Lin was not a permissive user of the rental vehicle
for purposes of the omnibus statute. We find, however, that the appellants waived their
argument with regard to permissive users by taking a contrary position in their cross-motion
for summary judgment below. There appears to have been a March 6, 2008, hearing on the
parties' motions for summary judgment. While a transcript of the hearing does not appear
in the record received by this Court, we have no indication that the appellants took a position
on the permissive user issue different from the one in their cross-motion for summary
judgment. Further, the circuit court found in its summary judgment order that “[b]y the
defendants' admission, there is no dispute that the defendant, Shin Yi Lin, was a permissive
user of the motor vehicle in which Jason Lin was a passenger.” This Court has no reason to
reject this finding by the circuit court.
Second, the appellants argue that exclusions in an automobile liability insurance
policy that are inconsistent with the omnibus statute are invalidated only up to the statutory
minimum coverage which was granted to Mr. Lin below. We find no merit to this argument.
The supplemental policy at issue, while it is in excess of the statutory mandatory minimum
coverage, does not specifically exclude Ms. Lin from coverage by a restrictive endorsement
attached to the policy as mandated by W. Va. Code § 33-6-31(a).